December 15, 2011

Judge Chides Prosecutors In FCPA Case Over Secret Notes

A federal judge in Washington today criticized prosecutors for litigation tactics in a foreign bribery case that kept defense lawyers in the dark about key notes that belong to a government witness.

Judge Richard Leon of Washington federal district court, presiding over a high-profile Foreign Corrupt Practices Act case, questioned the extent to which prosecutors tried to keep the notes hidden to secure an advantage.

Leon warned the government that “sharp” tactics, where prosecutors try to secure even the slightest advantage, will not be tolerated. The judge refused to declare a mistrial. But he did strike a part of a witness's testimony to sanction the government.

Prosecutors, the judge said in an oral ruling this afternoon, chose to keep the existence of the notes from the court and the defense lawyers, leaving it to chance that the notes would never come up. The judge questioned the government’s “calculated” move, saying the government “effectively snookered” the defense about whether or not the witness even had any notes.

At issue are notes that a man named Thomas O’Dea wrote in February 2010. O’Dea prepared a chronology of events of his activity in the fictitious arms and supply deal the government set up involving the government of Gabon.

The Gabon deal is at the heart of the FCPA prosecution in U.S. District Court for the District of Columbia. In all, 20 defendants were charged for their alleged participation in a deal that required an illegal payment to complete a business transaction. The defendants, executives in the arms and military equipment industry, were arrested in January 2010.

Prosecutors said O’Dea, who received immunity from criminal charges, prepared the chronology at the direction of a personal attorney. O’Dea used his notes as he prepared for his testimony during the trial.

The notes referenced post-arrest statements from at least one defendant, R. Patrick Caldwell, represented by Reed Smith partner Eric Dubelier. Leon said some of the statements could be characterized as exculpatory. Others arguably pointed to Caldwell’s guilt, the judge said.

The government’s legal team, including Laura Perkins and Matthew Graves, said they believed the attorney-client privilege protected O’Dea’s communication from disclosure to defense lawyers.

Perkins and Graves also said that since the government was never in possession of the notes, the prosecution did not have an obligation to turn over the information. Prosecutors instructed O’Dea not to reveal to them his communication with private lawyers, including any notes written at the advice of counsel.

“If such a due-process requirement did exist, or if it were created, then it would substantially curtail the scope and efficacy of a witness’s attorney-client privilege within the criminal process,” prosecutors said Wednesday in a court filing.

The existence of the notes surfaced on cross-examination on Dec. 12, court records show. A lawyer for Caldwell asked O’Dea about his certainty of his recollection of a conversation with Caldwell.

Prosecutors said the late disclosure of the notes did not hurt the defense lawyers, who can now use them for the cross-examination of O'Dea, which is set to continue this afternoon.

Leon said in court today that it wasn’t fair to strike O’Dea’s testimony altogether. Instead, the judge said he would tell jurors this afternoon to disregard anything O’Dea said about his conversation with Caldwell after his arrest.

Leon warned prosecutors not to cut any corners during the rest of the case or in any other prosecution in his court. Trials for other defendants in the case are scheduled for next year, including in February and in May.